75 Pa. Commw. 518 | Pa. Commw. Ct. | 1983
Opinion by
The Philadelphia County Board of Assistance (Board) appeals here from an 'adjudication of the State Civil Service Commission (Commission) ordering the reinstatement of Charles Vinson to his position as an Income Maintenance Worker I, probationary status. We reverse.
On January 30, 1981, the Board dismissed Mr. Vinson from his position as an Income Maintenance
[T]he relationship between appellant’s conviction and his job responsibilities is tenuous. The acts underlying appellant’s conviction occurred off-duty and are not likely to be duplicated on the job. Moreover, appellant occupied an entry level position with the appointing authority under close supervision, rather than a sensitive position with independent responsibilities.
The Commission then concluded that Mr. Vinson’s appeal had to be sustained since “ [t]he appointing authority discriminated against appellant by its use of a non-merit factor (i.e., the prior criminal conviction) as the basis for removal.” The present appeal followed.
“Our review of adjudications of the Civil Service Commission is limited to a determination of whether constitutional rights were violated, an error of law was committed, or necessary findings of fact are unsupported by substantial evidence.” Brown v. De
Here, the Board asserts (1) that there is not substantial evidence of record to support the Commission’s findings that Mr. Vinson was under close supervision and didn’t occupy a sensitive position, and (2) that the Commission erred as a matter of law by concluding that Mr. Vinson’s dismissal was based upon discriminatory non-merit criteria. We agree.
The Commission concluded that Mr. Vinson’s dismissal had been in violation of the mandate of Section 905.1 of the Civil Service Act (Act), Act of August 5,1941, P.L. 752, as amended, added by Section 25 of the Act of August 27, 1963, P.L. 1257, 71 P.S. §741.905a which reads as follows:
No officer or employe of the Commonwealth shall discriminate against any person in recruitment, examination, appointment, training, promotion, retention or any other personnel action with respect to the classified service because of political or religious opinions or affiliations because of labor union affiliations or because of race, national origin or other non-merit factor. (Emphasis added.)
We have recognized that under the provisions of Section 905.1
any ‘personnel action’ carried out by the Commonwealth is to be scrutinized in the light of . . . merit criteria, as has the party failed to properly execute his duties, or has he done an act which hampers or frustrates the execution of same. The criteria must be job-related and in some rational and logical manner touch upon competency and ability.
Lusane v. State Civil Service Commission, 5 Pa. Commonwealth Ct. 642, 646, 291 A.2d 808, 811 (1972)
In the present case, the only evidence submitted to the Commission pertaining to the nature of Mr. Vinson’s duties and responsibilities as an Income Maintenance Worker was evidence submitted by the Board. The Board’s Director of Personnel, Bobert H. Freeman, and the Board’s Executive Director, Don Jose Stovall, both testified (1) that Mr. Vinson’s job consisted primarily of determining the financial eligibility of either current or potential recipients of pub-
In light of the above testimony, we do not believe that the Commission’s findings with respect to the nature of Mr. Vinson’s duties are supported by the evidence of record. Instead, we believe that the undisputed evidence in this case indicates that Mr. Vinson occupied a highly sensitive position in which he was admitted into private homes and in which he had the opportunity to defraud the Commonwealth of substantial sums of money. Under such circumstances we believe that the Board could reasonably conclude that it would be inappropriate to have Mr. Vinson remain in his position in light of his criminal convictions. See Lusane. Accordingly, we believe the
In Ms brief to tMs Court, however, Mr. Vinson alleges, as he alleged below, that the Board should have been barred from challenging his eligibility for the position of Income Maintenance Worker I under the doctrine of res judicata since the Commission had earlier rejected a Board request to have his name removed from the Commission’s eligibility list. We disagree.
In determining whether the doctrine of res judicata should be applied “ [t]he essential inquiry is whether the ultimate and controlling issues have been decided in a prior proceeding in which the present parties had an opportunity to appeal and assert their rights.” Township of Ohio v. Builders Enterprises, Inc., 2 Pa. Commonwealth Ct. 39, 276 A.2d 556 (1971), aff’d, 446 Pa. 319, 284 A.2d 686 (1971). In the present case the record shows that there never was a prior proceeding before the Commission, only a request for the removal of Mr. Vinson’s name and a subsequent denial of the request in a letter to the Board. No hearing was ever held on the matter, and no evidence o.r arguments were submitted by the Board. Accordingly, since there never had been a valid adjudication resolving the issue of whether Mr. Vinson was entitled to work for the Board, the doctrine of res judicata is not applicable to this case.
Finally, Mr. Vinson alleges that his dismissal was in violation of the provisions of Article I, Section I of the Pennsylvania Constitution which provides in pertinent part that “ [a]ll men . . . have certain inherent and indefeasible rights, among which are . . . acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.”
Order
Now, July 19, 1983, the Order of the State Civil Service Commission dated April 21, 1981, at Appeal No. 3282, is reversed.
Amended Order
Our order in the above captioned case dated July 19,1983, is hereby .amended to read as follows:
Now, July 26, 1983, the Order of the State Civil Service Commission dated January 29,1982 at Appeal No. 3400, is reversed.